Opinion on motion for rehearing filed Oct. 21, 1893.
2. Parties incmSistlntie positions in court.
Hughes, J.This action was brought by the appellee to have the appellant declared a trustee as to land conveyed by appellee s grandfather to the appellant, by absolute deed, reciting a consideration of $8000, which the evidence in the case showed had never been paid.
The court below rendered a decree for the appellee, which upon appeal to this court was reversed, upon the ground that there was no written evidence of the creation or declaration of a trust, and that an express trust could not be created or declared in any other way than in writing ; that express trusts not in writing are within the statute of frauds and void.
A motion for a rehearing and a modification of the decree is filed, in which the appellee seeks to enforce the vendor’s lien for the purchase money, which was never paid. The suit was brought to establish a trust, and not to enforce a vendor’s lien, and the pleadings, evidence and argument in the cause were all directed solely to the question, whether there was a trust. Nothing prior to the filing of this motion was said about a vendor’s lien in the case, and no issue as to the existence of such a lien was made.
The contention that there was a trust is not consistent with the contention that there was a sale and a vendor’s lien for purchase money. The appellee prosecuted her suit to establish a trust alone, and having failed in this seeks to have a vendor’s lien enforced.
It is said “that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of a litigation must act consistently with it; one cannot play fast and loose.” Big. on Estoppel, p. 717; Pickett v. Merchants' Bank, 32 Ark. 348; Millington v. Hill, 47 id. 301; Railway Co. v. McCarthy, 96 U. S. 267.
This is no arbitrary rule, but is one demanded by the very object of courts of justice. Big. on Estoppel, p. 722.
The motion is denied.